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GINO v. BUREAU OF IMMIGRATION CUSTOM ENFORCEMENT

United States District Court, M.D. Pennsylvania
May 16, 2005
Civil No. 1:CV-04-2806 (M.D. Pa. May. 16, 2005)

Opinion

Civil No. 1:CV-04-2806.

May 16, 2005


MEMORANDUM


I. Introduction.

Petitioner, Fernando Antonio Gino, has filed a pro se document styled as a "Motion to Grant Naturalization Pursuant to Chapter 7 Title V," which we will call a petition under 8 U.S.C. § 1447(b). The petition seeks the following relief. First, Gino wants to be granted United States citizenship, either by us or by the Department of Homeland Security, after we order it to do so. Alternatively, Petitioner seeks reversal of the INS decision denying his application for naturalization on the basis that it was wrongly decided.

As Respondent has noted, in March 2003, the former Immigration and Naturalization Service (INS) was abolished and its functions were transferred to the Department of Homeland Security. In the Department of Homeland Security, "the former INS was divided into three compartments: Customs and Border Protection; Immigration and Customs Enforcement (ICE); and, Citizenship and Immigration Services (CIS). ICE is responsible for the investigative and enforcement functions of the former INS. Here, the proper Respondent is CIS which is responsible for deciding applications for citizenship." (Doc. 15, Government's response to the Petition, p.n. 1).

We will deny the petition. In connection with the first claim, the INS did decide Petitioner's naturalization application beyond the 120-day deadline in section 1447(b), but Petitioner cannot invoke that section when the INS nonetheless did decide his application, albeit tardily. In connection with the second claim, we agree with Respondent that Gino failed to exhaust administrative remedies.

II. Background.

Respondent provides the following background, which Petitioner does not dispute. Gino is a native and citizen of Brazil, and entered the United States on February 2, 1982, as a nonimmigrant. (Doc. 15, Ex. A, Notice to Appear). On August 7, 1985, he adjusted his status to that of lawful permanent resident. ( Id.).

Petitioner is currently in removal proceedings; hence the Notice to Appear. As Respondent relates, Gino was convicted in April 2003, in the United States District Court for the Southern District of Florida for the crimes of (1) conspiracy to commit an offense against the United States, to bring illegal aliens into the United States for financial gain and (2) an attempt to bring an illegal alien into the United States for financial gain, in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324(a)(2)(B)(ii), respectively. (Doc. 15, Ex. C, Record of Conviction).
Based on these convictions, ICE has commenced removal proceedings against Gino by filing a Notice to Appear in October 2004. ICE charged Gino as being removable from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), INA § 237(a)(2)(A)(iii), as an alien who has been convicted of an aggravated felony as defined in 8 U.S.C. §§ 1101(a)(43)(N) and (U), INA §§ 101(a)(43)(N) and (U).

In early 2001, Gino filed an Application for Naturalization, Form-400, in accordance with 8 U.S.C. § 1427, INA § 316. ( Id., Ex. B, INS Decision; Petition at p. 2). On May 24, 2001, Gino was interviewed concerning his application. (Doc. 15, Ex. B at p. 1).

In a decision dated October 19, 2001, the Acting District Director for the Miami, Florida, Office of the INS denied Gino's Application for Naturalization based on Gino's failure to show continuous residence for five years within the United States as required by section 1427. ( Id., Ex. B). This decision advised Gino that he could "request a review hearing on this decision" within thirty days by filing the request with the district director of the office that had made the decision. ( Id.). Gino did not file such a request, as authorized by 8 U.S.C. § 1447(a), INA § 336(a), or otherwise appeal the decision.

III. Discussion.

A. Section 1447(b)'s 120-Day Deadline.

Petitioner's first claim is that he is entitled to citizenship because the INS failed to decide his naturalization application within the 120-day period set forth in 8 U.S.C. § 1447(b). This claim has no merit.

8 U.S.C. § 1446(a), INA § 335, requires an investigation of an alien seeking naturalization. Section 1447(b), captioned, "Request for hearing before district court," provides as follows:

If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.
8 U.S.C. § 1447(b). Petitioner argues that this provision mandates that he be naturalized because he was examined on May 24, 2001, but no decision was made within 120 days. (The application was denied on October 19, 2001, about twenty-eight days beyond the deadline.)

Homeland Security regulations impose the same 120-day requirement. See 8 C.F.R. § 336.1(a).

Section 1447(b) does not support Petitioner's argument. It allows an immigrant to seek the assistance of the district court if his naturalization application has not been decided within 120 days, but it does not apply if the agency does eventually decide the application, albeit after the 120-day deadline. See Kembi v. INS, 8 Fed. Appx. 328, 330 (6th Cir. 2001) (nonprecedential); Kia v. INS, 1999 WL 172818 (4th Cir. 1999) (unpublished disposition); Langer v. McElroy, 2002 WL 31789757 at *3 (S.D.N.Y.). In any event, it does not mandate the grant of citizenship. It authorizes the district court to "determine the matter" or "remand" it for the agency to decide, with "appropriate instructions." Rodriguez v. Meissner, 2005 WL 887709 at *3 n. 3 (N.D. Tex.) (Sanderson, M.J.) (section 1447(b) does not "require the court to compel immigration officials to administer the oath of naturalization") (report adopted by the district court, 2005 WL 1018022).

In support of this claim, Petitioner has cited cases holding that agencies must follow their own regulations, see e.g., United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed 681 (1954), and cases dealing with statutory deadlines for agency action. See Gottlieb v. Pena, 41 F.3d 730 (D.C. Cir. 1994); Friends of Crystal River v. EPA, 35 F.3d 1073 (6th Cir. 1994).

We have reviewed these cases and they are either distinguishable or actually oppose Petitioner. Gottlieb and Friends of Crystal River hold that an agency that fails to meet a statutory deadline only losses jurisdiction if the statute specifies that as a consequence. Here, section 1447(b) imposes no such sanction on CIS.

B. Failure to Exhaust Administrative Remedies On the Challenge to the Denial of the Naturalization Application.

Petitioner's second claim is that the INS wrongly denied his naturalization application. An immigrant can seek judicial review of such a denial, see 8 U.S.C. § 1421(c), INA § 310, but only after he has pursued a hearing before an immigration officer. Id.; see also 8 U.S.C. § 1447(a). Petitioner did not seek such a review. This claim is therefore barred by his failure to exhaust administrative remedies. See Dan Li v. INS, 2003 WL 102813 at *4 (S.D.N.Y.); see also Langer, supra, 2002 WL 31789757 at *3.

We will issue an appropriate order.

The review is governed by 8 C.F.R. § 336.2.

ORDER

AND NOW, this 16th day of May, 2005, it is ordered that:

1. The petition (doc. 1) to grant naturalization is denied.

2. The Clerk of Court shall close this file.


Summaries of

GINO v. BUREAU OF IMMIGRATION CUSTOM ENFORCEMENT

United States District Court, M.D. Pennsylvania
May 16, 2005
Civil No. 1:CV-04-2806 (M.D. Pa. May. 16, 2005)
Case details for

GINO v. BUREAU OF IMMIGRATION CUSTOM ENFORCEMENT

Case Details

Full title:FERNANDO ANTONIO GINO, Petitioner, v. BUREAU OF IMMIGRATION AND CUSTOM…

Court:United States District Court, M.D. Pennsylvania

Date published: May 16, 2005

Citations

Civil No. 1:CV-04-2806 (M.D. Pa. May. 16, 2005)